There may be certain reasons why an employer may want to check the medical records of their existing employees or those of an individual which they intend to hire.
Often it will be due to one of the following reasons:
- Prior to employment and employer may want to check whether a potential employee has a health or physical ability which may impair their ability to do a specific job
- If an employee has been absent from work for an extended period of time the employer may wish to establish the timescales of how long the absence may continue
- If an employee is consistently taking one or two days off here and there their employer may wish to establish if there is an underlying health reason for these absences
- In certain cases employees will receive benefits under a permanent health insurance policy (PHI) and their employer may wish to consider various of their employees for one of these policies
- Employees who suffer a disability are provided protection under the Disability Discrimination Act 1995 and must have certain conditions fulfilled for them in the workplace. Often employers may wish to view medical records to establish whether they may need to make various adjustments in order to assist them to undertake their job
What does the Law Say?
The Access to Medical Reports Act 1998
The Access to Medical Reports Act states that an employer may have access reports provided by a medical practitioner which are in connection with their employment.
Does the employee have to give consent?
Section 3 of the Access to Medical Reports Act states that the employee has to give his or her consent for their employer to be given access to their medical records.
This means that an employer cannot ask a doctor to provide a medical report on one of his employees without first asking for consent of that employee.
Application of the Access to Medical Reports Act
The act applies to anyone who is under employment and anyone who is seeking employment with a particular employer.
Which reports can be accessed?
An employer can only obtain a medical report from a medical practitioner if it specifically relates to employment or insurance.
What is the procedure for access to my employee’s medical reports?
As an employer you must notify the employee or prospective employee concerned that you intent to apply to their doctor or medical practitioner to see their medical records.
Contained within the notification must be full details of the employee’s rights under the Access to Medical Reports Act.
An employer must obtain the employees written consent which must then be provided to the doctor in order to be provided with access to the requisite report.
What rights does an employee have under the Act?
An employee can do the following things under the Act:
- Refuse their consent
- To consent to the report being provided to their employer and state that it can be sent directly to their employer
- To consent to the report being provided to their employer but state that they wish to see the report before it is provided to their employer
Employee’s access to the report
If an employee states that the report can be sent but they wish to see it first under Section 4 of the Act the doctor or medical practitioner must wait 21 days before sending the report to the employer. During this period the employee must make suitable arrangements to either come and see the report or have it sent to them.
If they do not do this within the 21 days then the report will be sent to the employer.
Can an employee request changes to the Report?
Under Section 5 of the Act an employee can request the doctor to amend the report if they feel that it is incorrect or misleading.
The doctor can agree to amend the report but if they do not they can attach details of the employees views and state which they did not make any changes.
Having seen a report can an employee withhold their consent?
An employee is entitled to withhold their consent for a report to be provided to an employer having been provided access to it under Section 4 of the Act.
Can I refuse to employ a potential employee who withholds my access to their medical records?
If an occupational health assessment is part of your recruitment process then as an employer you can refuse an individual employment.
Will the doctor retain records I have requested on my employees?
Section 6 of the Act states that doctors will retain all reports requested by employers for six months. During this time the employee will be able to request access to them.
Section 7 of the Act states that the doctor does not have the show the employee information which they believe might cause serious harm to the employee’s physical or mental health or that of third parties.
Is there any other Legislation I should be aware of?
In relation to medical information concerning their employees all employers should be aware of the following:
The Data Protection Act
The Data Protection Act specifies that all personal data held regarding employees must be kept in an organised filing system. Data in relation to health is regarded as sensitive under the Data Protection Act meaning that consent must be given by the employee in order to lawfully process it. obtaining consent in the above format using the Access to Medical Reports Act will be sufficient.
The Disability Discrimination Act
The Act states that employers cannot discriminate against employees who are disabled, as defined by the Act, and that they have a duty to make reasonable adjustments in the workplace in order to accommodate the disability.
An employee should tell their employer regarding a disability but if this is not the case an employer can request the medical records in order to establish whether they need to make reasonable adjustments.